General Teamsters Union, Local No. 662 filed a complaint with the Wisconsin
Employment
Relations Commission on January 7, 1997, alleging that Clark County had committed
prohibited
practices in violation of Secs. 111.70(3)(a)1, 3, 4 and 5, Stats. On May 6, 1997, the
Commission
appointed Lionel L. Crowley, a member of its staff, to act as Examiner and to make and
issue
Findings of Fact, Conclusions of Law and Order as provided in Sec. 111.07(5), Stats.
Hearing on
the complaint was held on February 24, 1998, in Neillsville, Wisconsin. The parties filed
briefs and
reply briefs, the last of which were exchanged on July 13, 1998. The Examiner, having
considered
the evidence and arguments of counsel, makes and issues the following Findings of Fact,
Conclusion
of Law and Order.

No. 29091-B

Page 2

No. 29091-B

FINDINGS OF FACT

1. General Teamsters Union, Local No. 662, hereinafter referred to as the Union, is
a labor
organization within the meaning of Sec. 111.70(l)(h), Stats., and at all times material herein
is the
exclusive bargaining representative of all regular full-time employes with the power of arrest
in the
Clark County Sheriff's Department. The Union maintains its principal offices at 119 West
Madison
Street, Eau Claire, Wisconsin 54702-0086.

2. Clark County, hereinafter referred to as the County, is a municipal employer
within the
meaning of Sec. 111.70(l)(j), Stats., and maintains its principal offices at 517 Court Street,
Neillsville,
Wisconsin 54456-0111. At all times material herein, Dale Olson was the Clark County
Sheriff and
acted on behalf of the County.

3. At all times material herein, the Union and the County have been parties to
collective
bargaining agreements covering the bargaining unit represented by the Union. The first such
relevant
agreement (hereinafter "1994-1995 Agreement") was in effect from January 1, 1994 through
December 31, 1995. The "1994-1995 Agreement" contained, in pertinent part, the following
provisions:

ARTICLE 5 ­ GRIEVANCE PROCEDURE

Section 1. Grievance. A grievance is defined to be
a controversy between the Union and the
Employer, or between any employee or employees and the Employer as to:

A. A matter involving the interpretation of
this Agreement;

B. Any matter involving alleged violation
of this Agreement in which an employee, or group of
employees, or the Employer maintains that any of their rights or privileges have been
impaired in
violation of this Agreement; and

C. Any matter involving working
conditions.

. . .

Section 4. Arbitration

. . .

C. The written decision of the arbitrator shall be final and
binding upon both parties.

. . . Page 3

No. 29091-B

ARTICLE 6 ­ DISCIPLINE

Section 1. The parties recognize the principle of
progressive discipline. No disciplinary action
shall be taken against employees except for just cause.

4. The Union and the County entered into a successor agreement to the 1994-1995
Agreement, from January 1, 1996, through December 31, 1997 (hereinafter "1996-1997
Agreement").

5. During negotiations for the 1996-1997 Agreement, the County proposed the
following
addition to Article 5 ­ Grievance Procedure:

Section 8: Add A New Section read as
follows:

For grievances involving the review of a
suspension, a demotion or a dismissal, the employee
shall have the option of having the disciplinary action reviewed under the procedures set
forth in Sec.
59.21., Wis. Stats., but such actions shall not be subject to review under the grievance
procedures
set forth in this Article.

The proposal was dropped during negotiations and the
contract
language under Article 5
remained unchanged.

6. On November 30, 1994, Clark County charged Arthur Edwards (hereinafter
"Edwards"),
a Deputy Sheriff employed by Clark County under the 1994-1995 Agreement, with the
misdemeanor
offense of resisting or obstructing an officer.

7. On December 12, 1994, Sheriff Dale Olson filed a complaint against Clark
County Deputy
Sheriff Edwards, pursuant to Sec. 59.21(8)(b), Wis. Stats. The Sheriff suspended Edwards
pending
a hearing before the Clark County Grievance Committee, in which the Sheriff planned to
recommend
that Edwards' employment be terminated.

8. On December 20, 1994, the Union wrote a letter in which it put the County "(o)n
notice
that any grievance committee hearings and/or actions taken by the County . . . do not
supersede any
rights held by Mr. Edwards under the collective bargaining agreement. Deputy Edwards will
have
full recourse to pursue any action taken against him pursuant to the contract."

9. On or about January 27, 1995, the Clark County Grievance Committee denied the
Sheriff's
complaint. Consequently, Edwards was reinstated to employment.

Page
4

No. 29091-B

10. On May 1, 1996, a judgment of conviction was filed against Edwards for the
misdemeanor offense of resisting or obstructing an officer in Clark County Circuit Court.
Edwards
appealed this decision to the Wisconsin Court of Appeals.

11. On May 8, 1996, Sheriff Olson filed a complaint against Clark County Deputy
Sheriff
Edwards with the Clark County Grievance Committee pursuant to Sec. 59.21(8)(b), Stats.,
recommending that Edwards be terminated for violating the law as evidenced by his
conviction. The
Sheriff suspended Edwards with pay pending hearing before the Committee.

12. On May 14, 1996, the Union advised the Sheriff that Edwards and the Union
"(R)eserve
any and all rights under the collective bargaining agreement between the County and the
Union to
challenge any adverse actions which may be taken against him as a result of the statutory
proceedings."

13. On or about May 29, 1996, the Clark County Grievance Committee sustained
the
Sheriff's complaint, thereby discharging Edwards.

14. On May 30, 1996, pursuant to the 1996-1997 Agreement, Edwards filed a
grievance
against Clark County for his "termination of employment without just cause."

15. In a June 7, 1996 letter, Edwards informed the County that, pursuant to Sec.
59.21(8)(b)6, Wis. Stats., he was appealing the Clark County Grievance Committee's
findings and
conclusions to the Circuit Court for Clark County.

16. The County's Personnel Coordinator sent the Union a letter dated June 19, 1996,
which
stated as follows:

This is to inform you that the Personnel Committee has agreed to
Arthur Edwards' request that
the grievance hearing before that Committee be waived and that, at his discretion, the issue
of his
termination be referred directly to the arbitration process.

17. On July 12, 1996, the County's attorney sent a letter to
the
Union which stated, in part,
as follows:

Regarding Mr. Edwards' discharge, the County would note that
Mr. Edwards has appealed his
discharge to the Circuit Court pursuant to Sec. 59.21(8)6, Wis. Stats., which provides that
the
Court's decision shall be final and conclusive. The County does not believe, therefore, that
grievance
arbitration is available to Mr. Edwards in this matter.

Thereafter, Clark County has continued to refuse the Union's
request to arbitrate the May 30,
1996 grievance protesting Edwards' discharge.

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No. 29091-B

18. On or about January 24, 1997, the Circuit Court for Clark County denied
Edwards'
appeal and sustained the findings and decision entered by Clark County's Grievance
Committee on
or about May 30, 1996.

19. On or about April 10, 1997, the State of Wisconsin Court of Appeals District IV
reversed
Edwards' conviction for misdemeanor obstruction of justice and remanded for a new trial.
Subsequent to the Court of Appeals decision reversing Edwards' conviction, a motion for
relief was
timely filed with Judge Curtin requesting reversal of the Order, which was denied.

20. After the receipt of the Court of Appeals decision reversing Edwards'
conviction,
the
Union again protested Edwards' termination. Arthur Edwards remains terminated. He has
not been
reinstated to employment.

21. Edwards was not retried; rather he entered into a deferred prosecution
agreement. He
successfully complied with the terms of said agreement and the case was dismissed with
prejudice on
January 28, 1998.

22. On November 5, 1991, the Clark County Law Enforcement Committee issued
Deputy
Toni Karl, a dispatcher, a ten-day suspension without pay. The suspension was appealed to
arbitration. A hearing was held before Arbitrator Mueller on April 8, 1992, at the Clark
County
Courthouse. During the course of the hearing, the parties reached a voluntary settlement of
the
dispute.

Upon the basis of the above and foregoing Findings of Fact, the Examiner makes and
issues
the following

CONCLUSION OF LAW

The County was not required to arbitrate the County's Grievance Committee's
discharge of
the grievant under the parties' collective bargaining agreement's grievance procedure or any
other
agreement to arbitrate said discharge because the grievant chose to appeal his discharge by
the
Grievance Committee to the Circuit Court pursuant to Sec. 59.26(8)(b)6 (formerly Sec.
59.21(8)(b)6.), Stats., and therefore the County did not commit any prohibited practice in
violation
of Secs. 111.70(3)(a)1, 3, 4 or 5, Stats.

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No. 29091-B

Upon the basis of the above and foregoing Findings of Fact and Conclusion of Law,
the
Examiner makes and issues the following

ORDER

IT IS ORDERED that the complaint be, and the same hereby is, dismissed.

Dated at Madison, Wisconsin, this 31st day of August, 1998.

WISCONSIN EMPLOYMENT RELATIONS COMMISSION

Lionel L. Crowley, Examiner

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No. 29091-B

CLARK COUNTY

MEMORANDUM
ACCOMPANYING

FINDINGS OF FACT, CONCLUSION OF LAW
AND ORDER

In its complaint, the Union alleged that the County violated Secs. 111.70(3)(a)1, 3, 4
and 5,
Stats., by refusing to arbitrate the grievance over Edwards' discharge. The District answered
the
complaint denying that it violated Sec. 111.70(3)(a), Stats., by refusing to proceed to
arbitration.

UNION'S POSITION

The Union contends that the clear and unambiguous language of the parties'
agreement
provides that a discharge grievance is arbitrable. It refers to the 1994-95 and 1996-97
agreements
which contain no language excluding discharge or suspension grievances from arbitration. Is
submits
that the 1994-95 agreement defines a grievance which encompasses discharge grievances. It
observes
that the County attempted but failed to exclude disciplinary grievances in negotiations for the
1996-97
agreement. It insists that the unambiguous contract language must be enforced and the
Edwards
grievance is arbitrable.

The Union alleges that past practice supports its interpretation. It refers to the 1991
suspension of Deputy Toni Karl whose grievance proceeded to arbitration and was settled
during the
hearing before the arbitrator. It also claims that the suspension of Deputy Dennis Soik was
resolved
through the grievance procedure and the County has never before refused to arbitrate a
disciplinary
grievance. It further contends that bargaining history supports it in that the County
unsuccessfully
proposed a change to the grievance procedure which would have taken away employes' rights
to have
disciplinary action subject to review under the grievance procedure. It insists that the
County's
proposal was not merely a clarification of existing contract language but was a new change
and the
County is seeking to impose on Edwards the very restrictions it could not obtain in
bargaining.

The Union asserts that the County agreed to arbitrate the Edwards grievance. It
alleges that
in the County's June 19, 1996 letter to the Union, the County agreed to waive the initial
steps of the
grievance procedure and stated that Edwards could proceed directly to arbitration. It argues
that the
County reneged on its agreement in a July 12, 1996 letter to the Union stating that Edwards'
grievance was not arbitrable because he appealed the Grievance Committee's decision to
Circuit
Court as provided in Sec. 59.21(8)(b)6, Stats. It notes that the County was aware that
Edwards had
appealed to Circuit Court before the County agreed to arbitrate and such warrants an order
requiring
the County to satisfy its agreement to arbitrate.

The Union takes the position that the agreement does not conflict with the statute. It
claims
that the Wisconsin Supreme Court has determined that Sec. 59.21(8)(b) neither conflicts with
nor
prohibits arbitration agreements covering discipline of deputy sheriffs and the parties may
negotiate
contract terms that permit the option of appealing disciplinary action to neutral arbitration.

Page 8

No. 29091-B

It contends that the collective bargaining agreement contains an arbitration provision
which
permits Edwards to appeal his discipline to an impartial arbitrator. It insists that the
statutory right
of appeal to circuit court does not disrupt the harmony of Sec. 59.21(8)(b) with a collectively
bargained arbitration procedure. The Union maintains that the law of Wisconsin favors
resolution
of labor disputes through grievance and arbitration procedures. It recognizes that the WERC
must
strive to reconcile the provisions of MERA with any seemingly conflicting provisions of
other
statutes. It observes that the statutory establishment of committee review does not negate or
interfere
with the parties' obligations under the arbitration provision.

The Union claims it is entitled to reasonable attorney fees incurred in bringing this
action on
the grounds that the County has acted in bad faith in refusing to arbitrate Edwards'
grievance.

The Union concludes that the statutory procedure set forth in Sec. 59.21(8)(b) is in
harmony
with the Agreement's grievance procedure and the County's position that the statute
precludes appeal
of the Grievance Committee's decision to a neutral arbitrator conflicts with the clear
language of the
agreement, bargaining history and past practice. It argues that the County should be ordered
to
arbitrate Edwards' termination and make the Union whole.

COUNTY'S POSITION

The County contends that there was no agreement to submit Edwards' termination to
arbitration, and even if there was, it would be void as a matter of law. The County argues
that the
Union's assertion that the letter of June 19, 1996, was an agreement to arbitrate is erroneous.
It
states that the record establishes the County was not by the letter expressing an intent to
arbitrate;
it simply agreed to waive the grievance steps and Edwards, at his discretion, could refer the
matter
directly to the arbitration process but the County was not agreeing to arbitrate the dispute nor
waiving any challenges should Edwards decide to pursue arbitration. It claims that the Union
chose
to ignore the history behind and the rationale for the County's proposal in the 1996-97
bargaining.
The County asserts that the County understood that a discharged officer had to choose
between
appealing to arbitration or to court, but could not do both. It asserts the County recently has
taken
the position that the officer's only appeal is to court and the proposal was intended to clarify
the
statute versus the grievance procedure. It submits the County's July 12, 1996 letter is
consistent with
its understanding that because Edwards appealed his discharge to circuit court, he could not
proceed
to arbitration. It contends that this is consistent with past practice in that Deputy Toni Karl
did not
appeal to circuit court so her discipline was properly appealed to arbitration. The County
concludes
that there was no unconditional agreement by it to arbitrate Edwards' discharge and assuming
it
agreed under the "one or the other but not both" theory, Edwards' appeal to circuit court, as
stated
in the County's July 12, 1996 letter, meant that grievance arbitration was no longer
available.

The County alleges that the Commission lacks authority to order the County to
proceed to
arbitration over the decision to discharge Edwards. It notes that the discharge of a deputy

Page 9

No. 29091-B

sheriff is regulated by Sec. 59.26, Stats., formerly Sec. 59.21, Stats. The County
observes that the
Grievance Committee's decision is subject to review by the circuit court and Sec.
59.26(8)(b)6,
Stats., provides that if the order of the committee is sustained, it shall be final and
conclusive. It
notes that this parallels Sec. 62.13, Stats., for city police and fire departments and it points
out that
the relevant language related to circuit court review between the statutes is identical. The
County
claims that the two statutory provision create an irreconcilable conflict with the grievance
procedure.
It observes that this conflict was recognized and addressed by the Commission nearly fifteen
years
ago in City of DePere, Dec. No. 19703-B (WERC, 12/83). It asserts that early Commission
case
law allowed the "one or the other" approach and here Edwards' having appealed to circuit
court, an
order to proceed to arbitration would impermissibly contradict the provision of Sec. 59.26
that the
decision of the circuit court shall be final and conclusive.

The County argues that the Court of Appeals in City of Janesville, 193 Wis.2d 492
(Ct.App., 1995) determined that a contract provision which would allow an officer to appeal
his
disciplinary action to arbitration rather than to circuit court was prohibited because it ran
counter to
an express statutory command and was an unlawful transfer of authority. The County asserts
that
the City of Janesville, supra, provides strong precedent for the position that the Commission
lacks
authority to order the County to proceed to arbitration because to do so would create an
irreconcilable conflict with the express provisions of Sec. 59.26(8)(b)6, Stats. It notes that
Edwards
has appealed to the circuit court twice and is now seeking a third bite of the apple which is
not
permissible and is an unlawful transfer of authority to an arbitrator. The County contends
that "final
and conclusive" is meant to be final and conclusive and even appellate courts have no
jurisdiction to
review the circuit court's decision and certainly there is no statutory authority to transfer
appellate
review to an arbitrator. The County believes that the Commission lacks the authority to
order to the
County to proceed to arbitration over the discharge of Edwards and it requests that the
complaint be
dismissed.

UNION'S REPLY

The Union contends that the County's two arguments do not provide a sufficient basis
for
denying Edwards' right to arbitration. It asserts that the County disingenuously denies it
agreed to
arbitrate Edwards' grievance despite clear evidence of its agreement. The Union states that
the
County relies on decisions under the wrong statutory provisions to show an irreconcilable
conflict
between the agreement and Sec. 59.21(8)(b), Stats. The Union argues that the Supreme
Court's
decision in Brown County Sheriff's Department v. Employees Association, 194 Wis.2d 265,
533 N.W. 2d 766 (1995) requires enforcement of the parties' agreement to arbitrate. It
claims that
the City of Janesville, supra, as well as City of DePere, supra, are inapplicable because
Brown
County, supra, was decided later and arbitration clauses are enforceable which is different
than
whether arbitration clauses are mandatory subjects of bargaining. It also points out that
Janesville,
supra, interprets Sec. 62.13, Stats., as opposed to Sec. 59.21, Stats. The Union also submits
that
equity mandates arbitration as Edwards' discharge was based on a conviction that no longer
exists.

Page 10

No. 29091-B

The Union insists that the County agreed to arbitrate Edwards' grievance in its June
19, 1996
letter. It maintains that the testimony that this was not the intent of the County was
revisionist and
self-serving.

In conclusion, the Union takes the position that the County failed to show an inherent
conflict
between the parties' agreement and Sec. 59.21 (8)(b), Stats., justifying its refusal to
arbitrate. It
submits that the County should be made to honor its agreement to arbitrate and make the
Union
whole for its unlawful refusal to arbitrate.

COUNTY'S REPLY

The County contends that a review of the Union's arguments reveals that it has
chosen to
ignore recent case law and express statutory provisions which the County believes prohibit
access to
arbitration for disciplinary decisions involving law enforcement officers. The County point
out that
Edwards appealed his discharge to Circuit Court which distinguishes his case from those of
Karl and
Soik.

The County agrees that, in general, Wisconsin labor relations policy favors
arbitration
to
resolve labor disputes but there is an exception and that is if the court sustains the
Committee's order,
it shall be final and conclusive. The County believes that after Janesville, supra, Sec.
59.26(8)(b)6,
Stats., controls and is the sole appeal of discipline and arbitration is not available because it
would
be an unlawful transfer of authority to an arbitrator. The County maintains that the Union's
reliance
on Brown County, supra, is misplaced, as it had nothing to do with the transfer of authority
from
the circuit court to an arbitrator. It submits that the issue was whether the sheriff's powers
are
subject to or limited by a collective bargaining agreement.

The County observes that the issue of whether a deputy sheriff's sole remedy of
discipline is
review by the circuit court has not yet been addressed by the Supreme Court and it cites
Milas v.
Labor Association of Wisconsin, Inc. 214 Wis.2d 1 (1997) where a County was estopped
from
challenging an arbitrator's award on a sheriff's deputy's dismissal where no challenge was
made to
arbitration until after the arbitrator issued his award. It notes that it has objected to the
arbitration
of Edwards' discharge and it is Edwards who is seeking "two bites of the apple" by seeking
two
appeal routes.

As to the Union's request for attorneys' fees, the County contends that the Union has
failed
to meet the Commission's standard for awarding attorneys' fees. It requests dismissal of the
Complaint in its entirety.

DISCUSSION

The County has argued that the only appeal available to Edwards is to the circuit
court
pursuant to Sec. 59.26(8)(b)6, Stats. The County has acknowledged that the Wisconsin
Supreme
Court has not determined whether a deputy sheriff's sole and exclusive appeal of the
Grievance
Committee's decision is to the circuit court. Milas v. Labor Association of

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No. 29091-B

Wisconsin, 214 Wis.2d 1 (1997). The undersigned also finds that it is unnecessary to
make that
determination. The parties' collective bargaining agreement contains a grievance procedure
that
culminates in final and binding arbitration. Article 6 of this agreement provides that no
disciplinary
action shall be taken against employes except for just cause. Thus, it would appear that the
arbitration clause covers the issue of whether there was just cause for Edwards' termination.
The
Commission in Dodge County, Dec. No. 21574 (WERC, 4/84) held that an employe under
similar
language has the right to appeal through the grievance procedure under the just cause
requirement.
However, the Commission went on to state that the grievance procedure is an available
forum in
which to challenge a Grievance Committee disciplinary action only so long as the employe
has not
filed a Sec. 59.21(8)(b)6., Stats., appeal to circuit court. The rationale for this is that Sec.
59.21(8)(b)6, Stats., provides that if the circuit court upholds the decision, it is "final and
conclusive."
An agreement to arbitrate cannot be interpreted to challenge the same disciplinary action
dealt with
in the circuit court because to do so would contradict the statutory provision that the
decision, if
upheld by the circuit court, is "final and conclusive."

In the instant case, Edwards appealed to circuit court which upheld the County's
Grievance
Committee's decision to discharge Edwards and that decision by statute became final and
conclusive,
so the grievance procedure's arbitration provision cannot be invoked because it would
impermissably
contradict the statutory provision. Thus, arbitration is not available to Edwards. All the
examples
of past practice and other cases cited by the Union are not on point because none involved a
case
where the discharged or disciplined employe went to circuit court and after receiving an
adverse
decision, then attempted to proceed to arbitration on the same discipline. In DePere, supra,
a police
officer attempted to appeal a disciplinary action previously appealed to circuit court and the
Commission held that the City's refusal to proceed to arbitration did not constitute a
prohibited
practice.

The Union has argued that the County's June 19, 1996 letter constitutes a separate
agreement
to arbitrate the Edwards discharge. It is noted that the letter refers to the words, "at his
discretion,"
meaning that it was Edwards' choice to appeal to arbitration and that parallels the
Declaratory Ruling
in Dodge County, supra, where the Commission stated that it is "at the employe's option," to
proceed to arbitration as long as there is no appeal to circuit court. Edwards had appealed to
circuit
court and the record is not clear whether the author of the letter knew this or not but
Edwards could
have dropped his court appeal and proceeded to arbitration, so it would appear that this was
not a
separate agreement by the County to arbitrate his discharge. But even if it were, it entails
the same
exclusion as the regular contractual agreement to arbitrate. No arbitration agreement can
contradict
the statute and the circuit court's order that the Committee's decision is final and conclusive
precludes any agreement to arbitrate whether in the contract or by the letter of June 19,
1996.

Finally, the instant case is the reverse side of Milas, supra. In Milas, the parties
went to
arbitration over the dismissal of a sheriff's deputy and after the arbitrator's award, the
County sought
to set aside the arbitration award, claiming the statutory appeal to circuit court was exclusive.
The
Court concluded that the doctrine of equitable estoppel applied and ordered the arbitrator's
award
reinstated. Here, Edwards went through the statutory appeal

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No. 29091-B

process in Sec. 59.26(8)(b)6, Stats., and now seeks arbitration because he is not
satisfied with the
circuit court's decision. Here too, Edwards is estopped. To paraphrase the Court,
permitting
Edwards to question the circuit court's decision after he chose that venue and participated in
that
proceeding would give Edwards "two bites at the apple," arbitration and litigation, to obtain
a
favorable outcome. Edwards elected, at his option, to appeal to circuit court and having
done so, he
is estopped from seeking arbitration, and is bound by the court's order that the Committee's
decision
is final and conclusive. Therefore, there is no violation of Secs. 111.70(3)(a) 1, 3, 4 or 5,
Stats., and
the complaint has been dismissed in its entirety.